ABLE-NH, a disability rights group, holds a protest outside the Works at the Phenix Hall building in downtown Concord on Sunday afternoon, Jan. 23, 2011. The group protested a recent renovation to the building that did not include handicapped access at their Main Street entrance.
(John Tully/Monitor Staff)

The lawsuit over accessibility to Phenix Hall and its bagel shop should be dismissed because Concord’s Main Street renovations will include a ramp into the building, according to an attorney representing property owner Mark Ciborowski.

“The redesign of Main Street creates the opportunity, if the city’s going to tear up the street anyway . . . the city could do something with the sidewalk that would enable you to have access to Phenix Hall,” said Jack Crisp, Ciborowski’s lawyer. “And my client has developed a design and presented it to the city, and our understanding is the city finds that design acceptable.”

The city received a federal grant last year to redesign Main Street, and construction will begin this fall to reduce traffic to two lanes, widen sidewalks and improve safety and accessibility. Crisp said he’ll file a court motion this month to dismiss the lawsuit or halt it until after the Main Street renovations.

But the solution isn’t that simple, said attorney Aaron Ginsberg of the Disabilities Rights Center. The center sued Ciborowski’s family, which owns the building, in 2011 on behalf of three wheelchair users.

Ginsberg said he can’t drop the lawsuit until the building becomes accessible. He’d also like a settlement that guarantees permanent accessibility.

“Our position is really that it’s over when there’s actual access to the building,” Ginsberg said. “When that happens, I think there’s a good opportunity for us to try to reach an agreement on permanent access.”

A federal judge ruled in April that renovations to Phenix Hall in 2010 are subject to the Americans with Disabilities Act. But the court has not ruled whether improved accessibility would alter the historic nature of the building, which is on the National Register of Historic Places.

There are currently two steps between the sidewalk and each of Phenix Hall’s three storefronts. The lawsuit was also filed against the building’s tenants: The Works Bakery Cafe and the League of New Hampshire Craftsmen. (The third storefront is vacant.) The nonprofit that runs the League of New Hampshire Craftsmen’s retail shop reached a settlement last year. The nonprofit’s board agreed to support all plans to make Phenix Hall accessible, in exchange for being removed as a defendant in the case.

Because the Main Street renovations will create an opportunity to build a ramp in the city’s sidewalk, Crisp said Ciborowski worked with SMP Architecture to make a design.

The redesigned Main Street will have wider sidewalks and a large bumpout in front of Phenix Hall. Ciborowski’s plans show a ramp emerging from the sidewalk between Phenix Avenue and the clock tower, which will move from Eagle Square. That ramp would lead to a platform and accessible entrances into Phenix Hall. The platform would also extend in front of the building, with space for tables outside The Works Bakery Cafe. It would include a railing, with two steps down facing Main Street, and on the south end of Phenix Hall.

City Engineer Ed Roberge said he’s seen the plans and is moving forward with Cibowoski’s proposed design. The city council has authorized Roberge and the city’s design team to work with property owners to improve accessibility on Main Street.

Details such as the cost of Ciborowski’s proposed platform aren’t final yet, Roberge said.

“The question becomes cooperation between the downtown building owners and the city in terms of some shared responsibility,” he said.

Roberge said the state’s Division of Historical Resources has not yet completed its review of the new plans. The state agency must review all publicly assisted projects that could have an effect on historical properties.

The Disabilities Rights Center has also reviewed the platform design.

“It looks accessible to me,” Ginsberg said. “I think it’s a very nice-looking plan. I think there have been a number of nice proposals to make the building accessible, and that’s one of them.”

He noted that the city’s plans for accessibility are still developing.

“There are so many moving parts out there, and things have changed so much and so frequently,” he said. “And that’s really what makes it hard for us to say the suit could be moot or that we should be in a position where we should be withdrawing it.”

But the Main Street redesign project, which the city council approved Thursday night, hasn’t changed the Disabilities Rights Center’s goal, Ginsberg said.

“At the end of the day, what we brought this lawsuit for was for access,” he said.

But Crisp said the city’s project has affected the lawsuit because it will allow the use of city sidewalks to improve accessibility. Private property owners wouldn’t normally have the authority to build a ramp in the sidewalk, he said.

“So basically, the complete streets project has created a solution to this problem,” Crisp said. “And we just wish that it had happened two years ago.”